Tag Archives: software

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Patching the US patent system

The Electronic Frontier Foundation posted Can You Believe It? Legislation that Would Actually Help Fix the Patent System, about a new bill introduced by two US Representatives. The “SHIELD” act (Saving High-Tech Innovators from Egregious Legal Disputes) simply states that if you sue someone over a computer hardware or software patent, you better have a reasonable and good-faith belief a defendant actually infringes a valid patent before it sues. Otherwise, you’re up for all the costs.

I think it’s an excellent initiative. While not really fixing the patent system, it makes the now rife patent trolling particularly in the space of software patents unprofitable. Fundamentally I believe that software patents are a mistake, but I’m also a pragmatist. Software patents are not going to disappear overnight. However, any person or corporation with money (troll or not) can currently bully a small innovator, the mere threat can put them out of business regardless of whether the claims have merit. This is because the small innovator cannot even afford to let it go to court now, the process itself would bankrupt them even if they’d win. That is a hindrance to both innovation and valid economic activity – clearly that is not the intended purpose of the patent system. The patent system was intended to provide an inventor an exclusive time period to benefit from their invention either directly or through licensing (and as a sideline, recoup up-front costs) while having the details of the invention publicly available – thus promoting innovation, not hindering it.

The proposed bill is US legislation, but with a much broader effect. For instance, technically Europe doesn’t even have software patents, but any place that interacts with the United States through free trade agreements has some form of exposure to the US way of handling Intellectual Property, no matter how broken it is.

EFF point out that the “no frivolous claims or you pay” system has long been in place for copyright infringements and other such cases, so as a concept in the space of Intellectual Property rights it’s not new at all. It makes legal and logical sense sense and puts the US patent system in line with the rest of the US IP legislation, but no doubt there’ll be vigorous lobbying by parties that have an interest in keeping the system broken. It is a good sign that US Reps. DeFazio and Chaffetz stick their head out in this way.

For the broader case of software patents, see the Defend Innovation website. You can add your support there too.

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Patent Troll Says Anyone Using WiFi Infringes – Techdirt

http://www.techdirt.com/blog/wireless/articles/20111001/00365416161/patent-troll-says-anyone-using-wifi-infringes-wont-sue-individuals-this-stage.shtml

Just in case you still thought that software and abstract/method patents were a good and sane idea promoting business and innovation… do read this article on Techdirt. This new troll approach is all about going after small businesses that offer Wi-Fi services. You know, your local coffee shop, your library, the hotel down the way.

It’s a simple extortion scheme: “Pay us a few grand and we won’t sue you.” Even if it wouldn’t hold up in court, a small business can’t afford the legal expense and is likely to simply pay up on demand. All of us will get targeted directly or indirectly by this nonsense, it really has to stop – be stopped.

Also note this article from 2008, referencing a Haliburton patent application for the process for patent trolling. I kid you not. A quick search at USPTO reveals that the application still exists in the system (but hasn’t been approved at least).

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Tim O’Reilly on Piracy

This excerpt is from a broader interview by Forbes on Piracy, Tinkering and the Future of the Book. I’d encourage you to read the whole article, but I just wanted to pick out the bit about piracy as it’s particularly insightful.

For background: Tim O’Reilly is founder of the publishing company bearing his name, which is very well known in the IT/tech sphere – they’ve published a huge range of books over several decades now. They also organise conferences.

O’Reilly has removed DRM restrictions from its ebooks. And he explains why:

Q: On all your titles you’ve dropped digital rights management (DRM), which limits file sharing and copying. Aren’t you worried about piracy?

TO: No. And so what? Let’s say my goal is to sell 10,000 copies of something. And let’s say that if by putting DRM in it I sell 10,000 copies and I make my money, and if by having no DRM 100,000 copies go into circulation and I still sell 10,000 copies. Which of those is the better outcome? I think having 100,000 in circulation and selling 10,000 is way better than having just the 10,000 that are paid for and nobody else benefits.

People who don’t pay you generally wouldn’t have paid you anyway. We’re delighted when people who can’t afford our books don’t pay us for them, if they go out and do something useful with that information.

I think having faith in that basic logic of the market is important. Besides, DRM interferes with the user experience. It makes it much harder to have people adopt your product.

Software company Borland actually used a similar approach over 25 years ago. They sold their software quite cheap (compared to competitors) and lots of it was copied. However, aided by the awareness from the copying and the low price, the adoption was huge and thus they captured a huge share of the paid market.

Contrast this with companies that spend a lot of time and effort in to copy-protecting their software which mainly hinders their legal clients, and pursuing illegal users – an effort which, while legally valid, does not score any PR points. Since the actual cost of copying is 0, it makes much more sense to use this to your advantage. As Tim writes… he doesn’t mind if there are a 100,000 copies out there, he’s still sold his 10,000 copies – or more! And that’s the point: by taking this approach, he maintains and grows his business in a positive way, and doesn’t have the overhead of development or legal funds for copy-prevention. What applied to software has now moved on to ebooks (and of course, audio and video).

All this may initially feel a bit icky if you come from a traditional “physical item” perspective which makes “theft=theft”, and I appreciate that, but the context is completely different. Of course you want to reap the rewards for your effort. The cost of copying bits is essentially zero. Fact is that people do (want to) pay for good stuff, even if it’s not everybody. If you focus on that, you don’t really lose out if others also get a copy “for free”. Mindshare is valuable too.

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ignore the code: More on Software Patents

http://ignorethecode.net/blog/2011/08/08/more_on_software_patents/

Nilay Patel, on the This is my next podcast:

Nobody has ever told me exactly why the patent system is fundamentally broken.

Here’s why: it is simply not possible to create any non-trivial piece of software that doesn’t violate hundreds of [software]patents. As a result, you can’t release software without putting yourself into a position where you might suddenly lose all of your money. Essentially, thanks to the patent system, you can be put out of business at any time, for no good reason.

 

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Why poor countries lead the world in piracy

I found this article in the Guardian by Cory Doctorow interesting. Basically it refers to research noting that people in “poorer” (that’d be in $, not other factors) countries pirate items like software simply because they cannot afford the locally charged price. Cory suggests to tie pricing to the local cost of living.

None of that is really new, I did this for a software product I developed over 20 years ago. What I find interesting is that a) there has been research and b) it’s discussed in a well respected newspaper.